Report for the Minister for Home Affairs
Unlawful Public Entertainment (Jersey) Regulations 201-
The Unlawful Public Entertainment (Jersey) Regulations 2010 are triennial Regulations, which are due to expire on 20 July 2013. These Regulations make it an offence to hold a public entertainment without the permission of the Bailiff. These Regulations were initially introduced in July 1992 in order to bolster the Bailiff’s control of public entertainment, which is a customary power, reflected in his oath under the Code of laws of 1771, “vous garderez et ferez garder la paix”.
In 2000 it was proposed that the triennial Regulations should be replaced with a permanent Law. However, the Attorney General of the day expressed the view that the legislation ought to define what is meant by ‘public entertainment’. However, there were difficulties in determining a strictly legal interpretation of ‘public entertainment’ and the Regulations have been administered effectively since 1992. Consequently, the Regulations were re-enacted in 2001, 2004, 2007 and most recently in 2010, still without a definition of ‘public entertainment’.
When the Regulations came to the States in 2007, States members queried whether it remained appropriate for the Bailiff to be responsible for the control of entertainment and whether the Regulations were Human Rights compliant. In relation to the second point, there is no requirement for a Human Rights compliance statement to be attached to draft Regulations, as they are not a ‘projet de loi’. However, the Solicitor General of the day advised that there was nothing in the Regulations that were not Human Rights compliant.
In respect of the appropriateness of the Bailiff to be responsible for the control of entertainment, this was the subject of a review by the then Legislation Committee, following the adoption of P.168/2000, which was brought by the late Senator Lakeman and which charged the Committee:
(a) to investigate the current powers exercised by the Bailiff in controlling Public Entertainment;
(b) to consider, in consultation with the Bailiff and other interested parties, the desirability to alter the current position, including providing by statute for a Committee or Committees of the States, or some other person, to exercise any or part of such power; and
(c) to report to the States with the recommendations.
The first conclusion of the Legislation Committee working party, chaired by Deputy Le Hérissier, was that it was no longer appropriate for the Bailiff to exercise the executive function of controlling public entertainment. However, it later emerged that an alternative means of licensing entertainment would be costly and entail substantial law drafting, for which time was not available.
It is an offence at customary law to organise public entertainment without the permission of the Bailiff and all major public entertainment events are passed before the Public Entertainment Panel, which is chaired by the Bailiff’s Chief Officer.
The Regulations were brought back to the States in 2010. During the debate on 20 July 2010, States Members were largely in agreement that the current administration of entertainment by the Bailiff’s Panel works well and that there was no need to change the system. However, Deputy Tadier raised the issue of people’s right under Article 11 of the Human Rights Law to “Freedom of assembly and association” and queried whether somebody who organised a demonstration, without first obtaining the permission of the Bailiff under the Regulations, would be criminalised. He initially requested a reference back but withdrew this subject to confirmation from the Minister for Home Affairs that he would engage with Deputy Tadier and the Education and Home Affairs Scrutiny Panel on this issue. The Minister gave that undertaking.
The Minister has liaised with the Law Officers’ Department on this issue and it has been confirmed that demonstrations were not what was contemplated when the Regulations were originally drafted. No licence is required pursuant to the Regulations for a demonstration. However, there may be some confusion because Bailiffs have always claimed a customary power to control any events and entertainment in the Royal Square. Therefore, the permission of the Bailiff would be required to demonstrate in the Royal Square, but it would not be pursuant to these Regulations.
In relation to the definition of ‘public entertainment’ it would be open to any person who is in doubt as to whether or not what they are proposing is ‘public entertainment’ to seek guidance from the Bailiff’s Chambers. If it is felt desirable to move towards implementing the Working Party’s recommendations, it is unlikely that this could be achieved before the Regulations expire in July 2013.
In November 2012 the Minister wrote to both Deputy Tadier and the Education and Home Affairs Scrutiny Panel of which Deputy Tadier was not at the time, but is now, a member. The Scrutiny Panel has informally advised that they do wish to look at the issue and intend to develop a scope for the review. However, it is acknowledged that the work could not be completed before the Regulations fall due to be renewed, particularly as a six week lodging period is required for Regulations.
Recommendation
It is recommended that the Minister requests the Executive Officer Home Affairs to liaise with the Law Draftsman’s Office over the preparation of a new set of triennial Regulations.
Executive Officer, Home Affairs
5 March 2013
gov.je